2012du1957 Action for revocation of a penalty surcharge order

Neow Internet, Inc.

Fair Trade Commission

Seoul High Court Decision 2011Nu23315 Decided July 25, 2012

November 14, 2013

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

In full view of Articles 22 and 19(1) of the Monopoly Regulation and Fair Trade Act, Articles 9(1) and 61(1) [Attached Table 2] of the former Enforcement Decree of the Monopoly Regulation and Fair Trade Act (amended by Presidential Decree No. 21492, May 13, 2009) of the Monopoly Regulation and Fair Trade Act, where a business entity jointly engages in an unfair collaborative act with another business entity, the Fair Trade Commission may impose upon the business entity a penalty surcharge calculated on the basis of the sales amount of the goods or services related to the relevant period of violation. The scope of the related goods or services, which is the premise for calculating sales, should be determined individually and specifically by taking into account the type and use of the goods or services included in the agreement between the business entity that has jointly engaged in an unfair collaborative act, the possibility of substitution, the transaction area, transaction stage, etc. (see Supreme Court Decisions 2001Du10387, May 26, 201, etc.).

According to the reasoning of the judgment below, the court below determined to the effect that it was legitimate for the defendant to calculate the relevant sales by taking into account the goods of "one-month use right" in the calculation of the penalty surcharge in this case, on the ground that the goods of "one-month use right" are identical to the goods of this case and the number of grains (flaps) and the price of 500 won is increased only, and it seems that the contents of this case's collaborative act are reflected substantially.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the calculation of relevant sales amount, or misconception of facts

2. As to the ground of appeal No. 2, the degree of gravity of a violation caused by an unfair collaborative act shall be determined by comprehensively taking into account the degree of undermining competition order caused by the violation, the influence and ripple effect on the market, the degree of damage to the relevant consumers and enterprisers, and whether to acquire unjust enrichment (Supreme Court Decision 20

9. 8. Supreme Court Decisions 2009Du15005 Decided August 27, 2012; 2010Du24852 Decided January 27, 2012, etc.

According to the reasoning of the judgment below, the court below held that the company's total market share in the collaborative act of this case including the plaintiff amounts to 7.7% of 75.7% of the total market share of the enterpriser involved in the collaborative act of this case and includes the price and the composition of the goods, etc., as well as that the ripple effect of the collaborative act of this case is nationwide.

The Court determined that this was justifiable.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the degree of seriousness of unfair collaborative acts or misunderstanding of facts against the rules of evidence.

3. As to the third ground for appeal

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning, such as that the representative director of the plaintiff was present at the meeting of representatives held in the course of the consultation for the collaborative act in this case, the team leader of the plaintiff was present at all working-level meetings, and the contents of the final agreement were decided at the meeting of representatives. The court below determined that the plaintiff actively participated in the collaborative act in this case and the representative director of the plaintiff actively participated in the collaborative act in this case, and that the defendant's increase of 10% from the amount of the voluntary mediation penalty is legitimate. In light of the relevant provisions, legal principles and records, the court below's fact-finding and judgment are just and acceptable. There is no error of law that affected the conclusion of the judgment due to

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim So-young

Justices Shin Young-young

Note Justice Lee Sang-hoon

Justices Kim Yong-deok